Citation Nr: 0601334
Decision Date: 01/17/06 Archive Date: 01/31/06
DOCKET NO. 03-22 216 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an initial disability rating in excess of 20
percent for instability of the left knee.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K.A. Kennerly, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1978 to May
1980.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2003 rating decision of the
Chicago, Illinois Regional Office (RO) of the Department of
Veterans Affairs (VA), which granted the veteran's claim of
service connection for instability of the left knee, and
evaluated such as 20 percent disabling.
The veteran was afforded a Travel Board hearing with the
undersigned Acting Veterans Law Judge in October 2005. A
transcript of that hearing has been associated with the
claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
After a thorough review of the claims folder, the Board notes
that the veteran's claim must be remanded to the Appeals
Management Center (AMC) for further adjudication.
Specifically, the AMC must obtain additional medical
treatment records and schedule the veteran for a new VA
joints examination.
The AMC must also send a letter to the veteran to determine
if any additional medical treatment records for his left knee
are outstanding. Upon receipt of the veteran's response, the
AMC must obtain those records identified by the veteran, as
well as the treatment records from the veteran's
chiropractor, M.E., D.C., to include those records dated in
November 1998.
Upon receipt of those additional records, the AMC must
schedule the veteran for a new VA joints examination. As the
Court of Appeals for Veterans Claims (Court) explained in
Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), the Board
may consider only independent medical evidence to support its
findings. The Court went on to say that, if the medical
evidence of record is insufficient, the Board is free to
supplement the record by seeking an advisory opinion,
ordering a medical examination or citing recognized medical
treatises in its decisions that clearly support its ultimate
conclusions. Colvin at 175. For the reasons described
above, the veteran's claim must be remanded for another VA
examination.
In light of above, further evidentiary and procedural
development is needed. Accordingly, the case is REMANDED for
the following action:
1. The AMC must also send a letter to the veteran to
determine if any additional medical treatment records
for his left knee are outstanding. Upon receipt of the
veteran's response, the AMC must obtain those records
identified by the veteran, as well as the treatment
records from the veteran's chiropractor, M.E., D.C., to
include those records dated in November 1998.
2. After completion of the above, the AMC must schedule
the veteran for a VA joints examination to determine the
current level of impairment due to instability of the
left knee. All necessary studies should be completed
and all pertinent findings should be recorded. The
claims folder must be made available for review by the
examiner. The examiner must describe the left knee
instability, specifically whether it is slight, moderate
or severe.
3. After completing the above action, and any other
development as may be indicated by any response received
as a consequence of the actions taken in the paragraphs
above, the claim should be readjudicated. If the claim
remains denied, a supplemental statement of the case
should be provided to the veteran. After the veteran
has had an adequate opportunity to respond, the appeal
should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
K. PARAKKAL
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West Supp. 2005), only a decision
of the Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal. See
38 C.F.R. § 20.1100(b) (2005).